USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 4
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55
THE CONVENTION OF 1853
The Convention of 1853, like that of 1820, was called for the purpose of revising or altering the Constitution of the Commonwealth. Unlike its forerunner of 1820, however, it did not confine itself to this limited task. Not only did it submit seven specific amendments to the people, but it pre- sented them with an entirely new constitution. Despite its great efforts, the people rejected all the convention's proposals, November 11, 1853, including not only the new consti- tution but also the seven other separate propositions which it submitted to them at the same time.
The eight propositions submitted by the Convention of 1853 to the people and rejected by them provided for (1) a new constitution; (2) the broadening of the existing remedies by habeas corpus; (3) the giving to juries of the right to determine both the law and the facts in criminal cases; (4) the permitting of a judicial investigation of claims against the Commonwealth; (5) an increase in the existing restraints upon imprisonment for debt; (6) denial of appropriation of the school fund for the benefit of any religious sect; (7) the incorporation of businesses under general rather than special laws; and (8) the incorporation of banks under similar provi- sions and the redemption of bank notes in specie.
Of these eight propositions, the most important was the
21
CONVENTION OF 1853
new Constitution. This instrument embodied several desir- able changes. Thus, it provided for forty senatorial districts to take the place of the existing county representation, and also for a self-sufficient council of eight, chosen directly by the people in a corresponding number of single districts; abolished all property qualifications for voting, and also those for governor and lieutenant-governor; made the Tuesday next after the first Monday in November the State election day, so as to conform to the rule of Congress for national elections; and provided for the direct election by the people not only of such State officers as the attorney-general, treas- urer, auditor, and secretary, who had hitherto been appointed by the governor or else chosen by the General Court, but also of such county officers as sheriffs, district attorneys, clerks of court, and registers of deeds and of probate, all of whom had hitherto been appointed by the executive or the courts.
Had the convention been willing to confine its new Con- stitution to these changes alone, or to submit them in the form of isolated amendments, undoubtedly it would have proved a success. Its wisdom was clearly shown in later years, when these changes were in fact accomplished in the form of individual amendments to the Constitution. The great difficulty with the convention, however, was that it did not know where to begin and where to end. Thus, while proposing reforms in election methods it fell down on the matter of representation, leaving that subject, which for seventy-three years had proved so contentious and which had been the real cause for the convocation of the convention, no less controversial than at the time of the opening of the con- vention. To make matters worse, the convention incorporated into its Constitution so drastic a change as that of altering the tenure of judges from life-dependent upon their good behavior, to be sure-to ten years for judges of the supreme court and court of common pleas, and three years for probate judges. The failure to remedy the representative system of the house was bad enough; but this change in the method of judicial tenure was too much. It brought down a veritable storm of excoriation upon the convention and its work, and resulted in the flat rejection of the whole. The people would
22
GOVERNMENT AND CONSTITUTION
not accept unwelcome changes for the sake of obtaining those which they wanted.
DEMOCRATIZATION OF THE GOVERNMENTAL STRUCTURE (1855-1857)
Although it failed completely at the polls, the Convention of 1853 must be recognized as one of the most important factors in the constitutional growth and development of Massachusetts. In making the various proposals which it did, it gave the people a well-defined program of construction for matters which required change. These suggestions were appreciated by the people, and in the years immediately fol- lowing the convention they were embodied in a series of amendments which are among the most significant in the constitutional history of the Commonwealth.
Of these post-convention amendments, the most important are Amendments XVI, XXI, and XXII, which relate to the council, house of representatives, and senate, respectively. The Sixteenth Amendment, which was adopted by the legis- latures of the political years of 1854 and 1855, respectively, and ratified by the people May 23, 1855, finally determined the character of the council. Until 1840, this body, as we have seen, was a mere receptacle for the senate's overflow. The change made in its composition by Amendment XIII, of 1840, was its separation from the senate. The old system of election by the General Court and not by the people was still continued, however, although its members were now chosen from the people at large, and not merely from the forty senators.
The Convention of 1853 pointed out to the people what was the proper character and composition of this body. The people recognized the merit of the convention's advice and, acting upon it, adopted the Sixteenth Amendment, which gave the council its present form, providing for the division of the Commonwealth into eight districts, with one councillor elected from each district by the voters, and not by the Gen- eral Court as had hitherto been the custom. Thus the council, originally a body of nine elected by the General Court from forty "senators and councillors," and after 1840 from the
23
THE GOVERNMENTAL STRUCTURE
people at large, was now reduced to a body of eight, elected not by the General Court but directly by the people.
Two years later came the democratization of the senate. This body being intended originally as the representative of property, representation therein was, up to 1857, in propor- tion to the amount of taxes which the senatorial districts paid, so that the number of senators in the several districts varied. This system of special property representation was abandoned May 1, 1857, with the ratification of the Twenty-second Amendment. This amendment continued the membership of the senate at forty, and provided that the old senatorial dis- tricts be abandoned and that new districts should be laid out from time to time-each district to contain, as nearly as possible, an equal number of voters. Thus the senate, like the House, was now the representative of persons.
The same day on which the democratization of the senate was effected saw the final settlement of the problem of rep- resentation in the lower house. This great accomplishment was embodied in Article XXI of the Amendments, which was approved and ratified by the legislatures of 1856 and 1857, and adopted by the people May 1, 1857, by a vote of 31,277 in favor, to 6,282 opposed. It established the present system
of representation in the lower chamber. The old system of town representation was now abandoned, and the principle of a fixed house substituted therefor. The house of repre- sentatives was to consist hereafter of 240 members, appor- tioned by the legislature to the several counties of the Com- monwealth as nearly equally as possible, according to their relative number of legal voters. The amendment thus embodied the principles of a fixed house, and of dividing the whole State into representative districts of equal voting strength as the final solution to the problem which had pro- voked the calling of two constitutional conventions, and which for more than three-quarters of a century had caused so much friction, contention, and dispute. Yet this very same solution had been offered in 1780 by the obscure towns of Mendon, Spencer, Sutton, and Bridgewater.
With the adoption of Amendments XVI, XXI, and XXII, the first in 1855, the other two in 1857, the government as- sumed its present democratic form. In place of a General
24
GOVERNMENT AND CONSTITUTION
Court, representing persons in the one house and property in the other, there were now two thoroughly representative chambers, both representing persons only. Again, in place of the old council of nine, elected by the General Court, there was now a council of eight, elected by the people directly. The governmental frame had now become thoroughly popular and representative, and therefore thoroughly democratic and responsible.
OTHER POST-CONVENTION AMENDMENTS (1855-1857)
Besides Amendments XVI, XXI, and XXII, the years 1855 and 1857 saw the adoption of six other amendments : XIV, XV, XVII, XVIII, XIX, and XX. Of these, the first five were adopted on the same day as the Sixteenth Amendment, May 23, 1855, while the Twentieth Amendment was adopted May 1, 1857, along with Amendments XXI and XXII.
The first five are clearly post-convention amendments. That is, they are changes originally suggested by the Con- vention of 1853. Thus, Article XIV of the Amendments accomplished one of the aims of the Convention of 1853 by substituting the rule of plurality of votes for that of a majority in the election of all civil officers of the State provided for by the Constitution. This change was necessary to prevent a situation such as had arisen in 1850, when, no candidate for governor having received a majority vote, the election was thrown into the legislature. To prevent this, Article XIV of the Amendments provides that "in all elections of civil of- ficers by the people of this Commonwealth, whose election is provided for by the Constitution, the person having the high- est number of votes shall be deemed and declared to be elected." Today, therefore, a repetition of the gubernatorial election of 1850 would be impossible.
ELECTION DAY FIXED (1855-1857)
Article XV of the Amendments completed a change started by Amendment X. The latter amendment, it will be remem- bered, made the second Monday in November state election day. Amendment XV, however, embodying the proposal of
25
ELECTORAL AND SCHOOL REFORMS
the Convention of 1853 on this point, changed it to "the Tuesday next after the first Monday in November," thus making both the state and national election days the same, instead of a week apart, as under Amendment X.
POPULAR ELECTION OF STATE OFFICERS (1855)
Amendment XVII effected the change in the election of the secretary, treasurer, auditor and attorney general of the Commonwealth proposed by the Convention of 1853 : namely, their election by the people. In case of a vacancy between elections, the General Court if in session is to fill the office by joint ballot. If the General Court is not in session, the vacancy may be filled by the governor with the consent of the council.
SUPPORT OF SECTARIAN SCHOOLS WITHDRAWN (1855)
Article XVIII of the Amendments embodies into the fun- damental law the antisectarian amendment which the Con- vention of 1853 had submitted as its sixth proposition, and which had been defeated by only 401 votes. By the provisions of this amendment, which was intended to end the pressure for public funds from certain religious sects for the sup- port of their denominational schools, all moneys raised by taxation in the towns and cities or appropriated by the legis- lature for the support of public schools may be applied only to schools under the superintendence of the constituted muni- `cipal authorities, and are never to be appropriated to schools maintained by any religious sect.
Article XIX transferred from the chief executive of the Commonwealth to the people of the counties and districts the selection of sheriffs, probate registers, clerks of the courts, and district attorneys. It is significant, however, that Amend- ment XIX, unlike the original proposal of the Convention of 1853, does not include judges.
LITERACY REQUIREMENT (1857)
Two years after the adoption of these five distinctly post- convention amendments, Amendment XX was adopted. Un-
26
GOVERNMENT AND CONSTITUTION
like Amendments XXI and XXII, which were adopted in the same year, this amendment is really an isolated amendment of the "miscellaneous" variety having nothing to do with the Convention of 1853. It is important, nevertheless, for it makes ability to read the Constitution in the English language and to write one's name necessary qualifications for the right to vote. Inasmuch as property and tax-paying qualifications no longer exist, this amendment contains the sole condition precedent to the franchise in Massachusetts today.
COMPLEMENTARY AMENDMENTS (1857-1917)
With the adoption of the first twenty-two articles of amend- ment, the chief problems raised by the Constitution in its original form were now solved. There was no longer any controversy over representation in the house and senate, and over the composition and election of the council; the church had been disestablished; the property qualifications for a seat in the general court and council had been abolished; the test oath was no longer required; tax-paying ability had been substituted for property qualifications as a prerequisite for the franchise; the office of secretary, auditor, treasurer, and attorney-general of the Commonwealth, and the county of- fices of sheriff, register of probate, clerk of court, and district attorney had all been made elective; a mere plurality was hereafter to be necessary in elections by the people; and last, but most important of all, machinery for amending the funda- mental law had been incorporated into the Constitution.
But while the chief issues had ceased to exist, a few minor ones still remained. Thus, though the property qualifications for the house, senate and council no longer existed, those for governor and lieutenant governor had yet to be abolished. Again, while property qualifications for the franchise had been eliminated, the right to vote was still encumbered by the requirement of tax-paying ability. Still another problem was that of establishing the proper quorum for senate and House. These and various other problems were dealt with in the twenty-two articles of amendment appended to the Consti- tution between the adoption of Amendments XX, XXI and
27
FILLING OF VACANT OFFICES
XXII in 1857, and the convocation of the fourth constitu- tional convention in 1917.
The abolition of the property qualifications for governor and lieutenant governor was the work of the Thirty-fourth Amendment, which may be termed a "complementary" amend- ment-for, like the post-convention amendments of 1855- 1857, it was related to the reform and democratic movements of the first half of the century. The Constitution provided that no person should be eligible for the office of governor of the Commonwealth unless, at the time of his election, he was seised, in his own right, of a freehold within the Common- wealth of the value of one thousand pounds. The require- ment for lieutenant governor was the same. The elimination of these property qualifications of the Constitution, a proposal included in the new constitution of the Convention of 1853, was finally accomplished by Amendment XXXIV, which was adopted by the legislatures of the political years 1891 and 1892, and was ratified by the people November 8, 1892. Thus was completed the process of democratization, begun in 1821 with the adoption of the Seventh Amendment, which abolished the requirement that officers of the Commonwealth be of the Christian religion, and reflected in the Thirteenth Amendment which, as early as 1840, removed the property qualifications prescribed by the Constitution for the holding of a seat in either branch of the general court or in the council.
FILLING OF VACANT OFFICES (1860)
The minor difficulties which still remained concerning the senate, council, and house of representatives were ironed out by four more complementary amendments-Amendments XXIV, XXV, XXXIII, and XXXV. The first two, adopted by the legislatures of the political years 1859 and 1860, and ratified by the people May 7, 1860, provided for the filling of vacancies in the senate and council. Thus, Article XXIV pro- vided that vacancies in the senate, which up to 1860, were filled by the legislature, should hereafter "be filled by election by the people of the unrepresented district, upon the order of a majority of the senators elected." Curiously enough, Article XXV, although adopted in the same year, did not
28
GOVERNMENT AND CONSTITUTION
extend the elective system to the filling of vacancies in the council, but provided that in case of a vacancy in the council, not the people, but the General Court should "by concurrent vote, choose some eligible person from the people of the dis- trict wherein such vacancy occurs, to fill that office. If such vacancy shall happen when the legislature is not in session, the Governor, with the advice and consent of the Council, may fill the same by appointment of some eligible person."
QUESTION OF QUORUMS (1891)
The most important of the complementary amendments relating to the house of representatives, senate, and council, however, is Article XXXIII of the Amendments. This amendment, which was adopted by the legislatures of the political years 1890 and 1891, and ratified by the people Nov- ember 3, 1891, definitely settled the matter of a proper quorum for senate and house. The original constitutional provisions were that sixteen senators and sixty representatives should constitute a quorum for senate and house respectively. The provision relating to the house had been changed in 1857, however, by Amendment XXI, which not only divided the whole State into representative districts of equal voting strength and fixed the number of representatives at 240, but changed the low quorum for the house to 100 members, a figure proposed as far back as 1780 by some of the towns in Worcester and Hampshire counties. Amendment XXXIII now completed the evolution of the present quorum by pro- viding that hereafter a majority of the members of each branch of the General Court was to be necessary for a quorum.
TRAVELLING EXPENSES (1893)
Amendment XXXV is the last of these complementary amendments relating to the General Court and council. This amendment, adopted by the legislatures of the political years 1892 and 1893, and approved and ratified by the people on November 7, 1893, provided that "so much of ... the Con- stitution of the Commonwealth as is contained in the follow- ing words: 'The expenses of travelling to the general
29
THE FRANCHISE
assembly, and returning home, once in every session, and no more, shall be paid by the government, out of the public treasury, to every member who shall attend . .. ,' is hereby annulled."
AMENDMENTS AFFECTING THE FRANCHISE (1881-1912)
The franchise was dealt with by several amendments during this period. The most important are Amendments XXXII and XL, adopted November 3, 1891, and November 5, 1912, respectively. Both are complementary to the Third Amend- ment. The Thirty-second Amendment provided that so much of Article III of the Amendments as related to the pay- ment of a tax as a voting qualification was thereby annulled. Thus, since 1891 the sole qualification for the franchise has been that of literacy embodied in the Twentieth Amendment, which excludes from the right of suffrage and of election to office every person who is unable to read the Constitution of the State in the English language and to write his own name. Although the work of the short-lived and violent American party, an organization founded on the assumption that the new Irish and German immigrants were unfit for the task of operating American political institutions, this amendment represents a sound policy, and very properly forms a part of the fundamental law of the Commonwealth.
Amendment XL, like Amendment XXXII, deals with the Third Amendment and the suffrage. The Third Amendment excludes from the suffrage paupers and persons under guard- ianship. Amendment XL enlarges this group of ineligibles by placing in that category "persons temporarily or perma- nently disqualified by law because of corrupt practices in respect to elections."
Amendment XXXII was the last of a series of consecutive amendments dealing with the franchise which were adopted during the years 1881-1891. The first of this group was the Twenty-eighth Amendment. This amendment, adopted Nov- ember 8, 1881, was intended for the benefit of Civil War veterans, and it therefore nullified both the pauper and poll- tax provisions of the Third Amendment so far as persons who had served in the Army or Navy of the United States in time of war and had been honorably discharged from such
30
GOVERNMENT AND CONSTITUTION
service were concerned. In 1890, the phraseology of this amendment was changed by the Thirty-first Article of the Amendments. This amendment, ratified November 4, 1890, eliminated the word "pauper" from the Twenty-eighth Amendment and substituted therefor the words: "receiving or having received aid from any city or town." With the adoption of the Thirty-second Amendment, the special poll- tax exemption of Amendments Twenty-eight and Thirty- one ceased to be important. Since paupers are disqualified for the franchise, however, the other exception made by these amendments is still of importance.
ADDITIONAL COMPLEMENTARY AMENDMENTS (1894-1913)
Besides these amendments relating to the franchise, the House, senate and council, and the governor and lieutenant governor, this period saw the adoption of three more comple- mentary amendments: Amendments XXXVI, XXXVII, and XLII. The first of these, adopted November 6, 1894, with- drew from popular election the office of commissioner of insolvency.
The next, adopted November 5, 1907, provided that "the governor, with the consent of the council, may remove justices of the peace and notaries public."
Amendment XLII, ratified by the people November 4, 1913, is the last of the complementary amendments. This amend- ment, adopted as a result of the opinion of the justices to the effect that a state-wide referendum would be unconstitutional, empowered the General Court to refer to the people for their rejection and approval at the polls any act or resolve, or any part or parts thereof. This investing of the legislature with the power to attach a referendum clause to such measures as it might see fit was, of course, a preliminary to the adoption of the initiative and referendum.
MISCELLANEOUS AMENDMENTS (1857-1917)
The twelve amendments just considered are all of a com- plementary nature. That is, they either complete an evolu- tionary process begun with the amendments of 1821, carrying
31
HARVARD OFFICERS ELIGIBLE
them out to their logical conclusions, or else they are related to the general reform and democratic movements which characterized the first half of the century. In addition to these complementary amendments, the years 1857-1917 saw the adoption of ten other amendments. These latter are not of a complementary but of a general character, and consti- tute a group of "miscellaneous amendments."
Considering these in chronological order, we find the first is Article XXIII. This amendment placed a limitation on the enfranchisement of naturalized persons of foreign birth by providing that such persons should not be entitled to vote nor be eligible to office unless they shall have resided within the United States for two years subsequent to their natural- ization. This unfair discrimination against naturalized citi- zens proved short-lived. Adopted May 9, 1859, this Twenty- third Amendment was repealed and wholly annulled by the Twenty-sixth Amendment only four years later, April 6, 1863.
HARVARD OFFICERS MADE ELIGIBLE (1877)
The Twenty-seventh Amendment, approved and ratified by the people November 6, 1877, and making the president and faculty of Harvard College eligible for the legislature, is perhaps the most remarkable of the miscellaneous amend- ments. The Constitution is very strict on the matter of incompatible offices. Up to 1877 the officers and faculty of Harvard College, because of the constitutional provisions re- lating to the University at Cambridge, were regarded as state officials and were consequently disqualified for holding certain other state offices. In 1877, however, the Twenty- seventh Amendment removed this disability and made "per- sons holding the office of president, professor, or instructor of Harvard College" eligible for the General Court.
VOTERS AND VOTING (1885-1911)
Amendments XXIX and XXX, adopted November 3, 1885, and November 4, 1890, respectively, deal with the questions of voting and the qualifications of voters. The Twenty-ninth Amendment empowers the General Court to
32
GOVERNMENT AND CONSTITUTION
prescribe rules for the conduct of State elections, while the Thirtieth Amendment provides that a properly qualified voter who changes his residence is, nevertheless, qualified to vote for governor, lieutenant governor, senator, or representative, in the city or town from which he has removed his residence, until the expiration of six months from the time of such removal.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.